SLAPP 2.0: Second Generation of Issues Related to Strategic Lawsuits Against Public Participation

Date01 February 2015
SLAPP 2.0:
Generation of
Issues Related to
Lawsuits Against
by Lori Potter and W. Cory Haller
Lori Potter is a Partner at Kaplan Kirsch Rockwell LLP in
Denver, Colorado, with a practice in environmental and
public land law. W. Cory Haller recently completed his
term as an Attorney-Fellow at Kaplan Kirsch Rockwell.
is Article updates a July 2001 -
sis article on Strategic Lawsuits Against Public Par-
ticipation (SLA PPs) and common-law and statutory
defenses against them. Since that survey, a dozen addi-
tional jurisdictions have enacted statutes providing
some degree of protection for SLAPP defendants, and
courts have continued to apply these statutes as well
as common-law and constitutional (Petition Clause)
defenses. In general, while “second-generation” issues
have added some wrinkles to SLAPP practice, the
results remain the same: almost all SLAPPs are ulti-
mately dismissed.
Captain Eric Krystkow iak was stationed at the U.S. Air
Force Academy in Colorado Springs and re siding with
his wife and family in a home o the ba se when a new
development wa s proposed for his block. Spe aking at a
city council hearing, C aptain Kry stkowiak questioned
whether the development would be consistent with city
zoning. e cit y rejected the development on the basis
of noncompliance with the city code; the developer
then led suit against him individual ly. It took six years
from t he time Captain Kr ystkowiak rst learned of the
development until the Colorado Supreme Cour t, apply-
ing the st ate’s common-law anti-SLA PP standard, nally
armed the d ismissal of the claims. By this time, he had
been tr ansferred to a nother base , where he continued to
deal with the SLAPP. He is now a Colonel in the Air Force
and Commander of the 45th Launch Group.1
I. Introduction
Strategic Lawsuits A gainst Public Participation (SLAPPs)
may be the lega l world’s analog to horror movies: spine-
chilling, but hard to look away from. is Article is a
sequel to a primer on the issue that appeared in the July
2001 edition of .2 Both articles survey
the leading case law, the most recent statutes, and other
resources on the subject. For a full treatment of the subject,
the two articles should be read together.
A SL APP is t he ling of litigation against an individ-
ual who, like Captain K rystkowiak, communicates with
or tries to inuence the government. Experience shows
that nea rly all claims ta rgeting petitioning are eventually
dismissed,3 as were those against him, but the mere ling
of litigation often serves a plainti’s purpose of chilling the
continued exercise of First Amendment rights.4
e signicance of the chilling eect of a SLAPP is hard
to overstate. A SLAPP defendant pays a high price in time,
money, and peace of mind to defend an action brought in
response to that individual’s exercise of the right to peti-
tion the government. Frequently, a defendant will c ease
1. See Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859, 872 (Colo. 2004).
e a uthor led an amicus bri ef for the Le ague of Women Voters and
SLAPP Resou rce Center in support of Krystkowiak in the Colorado Su-
preme Court.
2. Lori Potter, Strategic Lawsuits Against Public Participation and Petition
Clause Immunity, 31 ELR 10852 (July 2001).
3. Potter, supra note 2, at 10853 and n.26.
4. See generally Potter, supra note 2.
       
Article. Lori Potter can be contacted at lori.potter.denver@gmail.
com. W. Cory Haller can be contacted at
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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